Full Opinion

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 25-2143 ERIC STUPAK, Plaintiff-Appellant, v. MONT DU LAC SNOWSPORTS, LLC, et al., Defendants-Appellees. ____________________ Appeal from the United States District Court for the Western District of Wisconsin. No. 24-cv-291 — James D. Peterson, Chief Judge. ____________________ ARGUED APRIL 16, 2026 — DECIDED SEPTEMBER 8, 2026 ____________________ Before HAMILTON, LEE, and TAIBLESON, Circuit Judges. TAIBLESON, Circuit Judge. The Mont du Lac resort in Wis- consin offers a variety of recreational activities, including tube slides. On one Sunday in the summer of 2022, the tube slides were closed—but the resort had neglected to display the “Ride Closed” sign or put away the tubes. The resort did, however, deflate the protective bumpers that kept riders from flying off the sides. Three resort pass-holders, fresh off a round of disc golf, asked at the front desk about using the tube 2 No. 25-2143 slides. The manager responded, “I’m not going to say any- thing.” So the group, which included plaintiff Eric Stupak, proceeded to use the unattended slides. Stupak promptly fell off and was seriously injured. Stupak sued, asserting that the resort was liable for his in- juries under Wisconsin tort law. The district court granted summary judgment for the defendants. We agree with the dis- trict judge’s conclusion that Stupak was a trespasser on the slides, but we believe a reasonable jury could find that Mont du Lac acted recklessly. We thus vacate the judgment and re- mand for further proceedings. I. Mont du Lac is a resort located in Superior, Wisconsin, just across the border from Minnesota. During the winter, skiers and tubers use its amenities for snow activities. During the summertime, it offers various other activities, including a disc golf course, a water park, and tube slides. In June of 2022, Stupak and two of his friends went to Mont du Lac to play disc golf, as they had many times before. After playing a round, they decided to try out the tube slides, which they had never used before. Stupak’s friend, Jonathan Hamann, asked the manager at the front desk, Devon Schultz, whether they could use the slides. The parties dispute how Schultz responded, but taking Stupak’s version of the facts (as we must when reviewing summary judgment entered in Mont du Lac’s favor), Schultz replied, “I’m not going to say anything.” The group then proceeded to the tubing hill. No one else was there—no attendants and no other riders. Tubes were strewn about at the base of the hill, on the path to the top, and No. 25-2143 3 at the summit. The conveyor belt that took customers and tubes to the top of the hill was not operating. A “Ride Closed” sign was there, but instead of blocking the platform at the top of the slide, the sign was with its chain coiled off to the side. Stupak and his friends saw floppy blue stripes on each side of the slides; unbeknownst to them, these were deflated bump- ers that kept the tubes and riders from falling off the sides of the slides when they were inflated for normal use. Images provided by the parties show what the bumpers look like both inflated and deflated: 4 No. 25-2143 Undeterred, Stupak and his friends used the slides. Hamann went down first without incident. Stupak went next, but his tube fell off the side of the slide, and he hit a tree. Among other injuries, Stupak broke his spine, ribs, and hip. Nearly two years later, Stupak filed this suit against Mont du Lac and its insurer, Nova Casualty Company. He blamed Mont du Lac for his injuries, claiming it failed to take proper precautions. The defendants moved for summary judgment, and the district court granted their motion. The district judge first concluded as a matter of law that Stupak had been a tres- passer on the slides, which meant that the resort was liable for Stupak’s injuries only if it had engaged in “willful, wanton, or reckless conduct.” The judge then found there was insuffi- cient evidence of recklessness to warrant the case going to a jury. Having found Stupak incapable of winning this suit, the No. 25-2143 5 district judge declined to rule on the other issues presented in the parties’ summary judgment motions. Stupak appealed. II. Sitting in diversity, we apply federal procedural law and Wisconsin substantive law. 28 U.S.C. § 1652. Summary judg- ment is appropriate if the movant shows that there is no gen- uine dispute of material fact and that the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). We review a grant of summary judgment de novo, construing all evidence in favor of the non-movant. See Chitwood v. Ascension Health Alliance, 168 F.4th 493, 497 (7th Cir. 2026). To get his case to trial, Stupak must identify evidence that could support a rea- sonable jury verdict in his favor. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). In Wisconsin, property owners may be liable in tort if they fail to exercise due care and someone is injured on their prop- erty as a result. See Antoniewicz v. Reszcynski, 70 Wis. 2d 836, 236 N.W.2d 1, 11–12 (1975). The nature of the landowner’s duty to a person on the land depends on whether the person has permission to be there. Id. When a visitor has permission to be on the property, the landowner owes that person a duty of “ordinary care,” meaning “the standard that is used in all other negligence cases in Wisconsin.” Id. at 11. But when the visitor is a trespasser—someone “who enters or remains upon property in possession of another without express or implied consent”—the landowner owes a lower duty of care. WIS. STAT. § 895.529(1)(b). A landowner is only liable for a 6 No. 25-2143 trespasser’s injury if the landowner “willfully, wantonly, or recklessly caused the injury.” Id. § 895.529(2), (3)(a).* A. The first question in this case is whether Stupak was a tres- passer on the tube slides. Even though Stupak undisputedly had permission to be at the resort, a guest can become a tres- passer if he enters a specific area closed to the public without express or implied permission. See Monsivais v. Winzenried, 179 Wis. 2d 758, 508 N.W.2d 620, 627 (Wis. Ct. App. 1993). Whether a landowner gave permission is determined by “the owner’s conduct” as interpreted by “a reasonable person hav- ing knowledge thereof.” Verdoljak v. Mosinee Paper Corp., 192 Wis. 2d 235, 531 N.W.2d 341, 345 (Wis. Ct. App. 1995), aff’d, 200 Wis. 2d 624, 547 N.W.2d 602 (1996). Mont du Lac did not give Stupak express permission to use the slides. Express consent exists when a landowner gives a “specific invitation to come upon the premises.” Monsivais, 508 N.W.2d at 624 & n.4 (citation omitted); see also Wis. JI–Civil 8015 (2013). Stupak briefly argues that Schultz * In 2011, Wisconsin “codif[ied] the civil liability of landowners to tres- passers,” which had been governed by common law. Donaldson v. K & R Cross, Inc., 375 Wis. 2d 798, 2017 WL 1476344, at *3 (Wis. Ct. App. Apr. 25, 2017); 2011 Wis. Act 93 (codified at WIS. STAT. § 895.529). Exercising diver- sity jurisdiction over this matter, “our task is to interpret the state’s law as we predict the state’s highest court would.” Bogie v. Rosenberg, 705 F.3d 603, 609 (7th Cir. 2013). And when “a statute merely codifies existing com- mon law,” Wisconsin courts look to “cases interpreting the common law” for persuasive guidance. Carroll v. Town of Balsam Lake, 206 Wis. 2d 529, 559 N.W.2d 261, 263 (Wis. Ct. App. 1996). As we interpret and apply § 895.529, we therefore also consider Wisconsin cases decided both before and after the 2011 codification. No. 25-2143 7 expressly gave permission to use the slide by saying, “I’m not going to say anything.” But a mere failure to object is not a “specific invitation,” and Stupak points to no Wisconsin deci- sion suggesting otherwise. Implied consent is a closer question, but we ultimately find that lacking too. “[C]onsent may be implied from the con- duct of the owner, from the relationship of the parties, or by custom.” Baumgart v. Spierings, 2 Wis. 2d 289, 86 N.W.2d 413, 415 (1957); see also Wis. JI–Civil 8015 (“There is an implied consent when the possessor, by his or her conduct or … words, or both, by implication consents to such other person’s being on the premises.”). Determining whether a landowner has granted implied permission to use the premises requires a close examination of “the landowner’s knowledge of an- other entering his land and his resulting behavior.” Fandrey ex rel. Connell v. Am. Family Mut. Ins. Co., 272 Wis. 2d 46, 680 N.W.2d 345, 360 n.13 (2004) (citation omitted). Once again, the only thing Mont du Lac communicated to Stupak (through its mouthpiece Schultz, passed via Hamann) was, “I’m not going to say anything.” But “I’m not going to say anything” does not imply permission. To the contrary, it conveys the opposite information: that Stupak and his friends did not have permission, but that Schultz himself would not get them in trouble. (If they had permission, why would Schultz need to keep their use of the slides a secret?) Stupak argues that other aspects of Mont du Lac’s behavior—specifi- cally, the state in which it left the slides—could amount to im- plied permission. But even if the resort could have done a bet- ter job shutting down the slides, the slides’ condition, com- bined with Schultz’s statement, did not indicate that the slides were open for use. While this is a close question, we 8 No. 25-2143 ultimately agree with the district court that no reasonable jury could find that Mont du Lac had given Stupak permission to ride the tube slides. With neither express nor implied consent to use the slide, Stupak was trespassing as a matter of law. As a result, Mont du Lac owed him only the care due to a trespasser. B. To prevail as a trespasser, Stupak must show that Mont du Lac behaved recklessly (or worse). WIS. STAT. § 895.529(3)(a). Recklessness on this record is another close call. The district court held as a matter of law that Mont du Lac had not been reckless, in large part because it found that “Mont du Lac didn’t take any affirmative action with respect to Stupak and his friends. Mont du Lac simply left the slide area as it was, waiting for its next open session.” Although we respect the district judge’s reasonable and considered judgment, on de novo review we disagree: Based on the evidence before us, a reasonable jury could find that Mont du Lac acted recklessly. ‘‘Recklessness ‘contemplates a conscious disregard of an unreasonable and substantial risk of serious bodily harm to another.’” Noffke ex rel. Swensen v. Bakke, 315 Wis. 2d 350, 760 N.W.2d 156, 166 (2009) (citation omitted). A landowner recklessly causes injury if he creates “a high risk of physical harm to another” through a lack of care that “is substantially greater than negligent conduct.” Id. at 166–67 (citation omit- ted). As we explained above, Schultz’s response to Hamann im- plied that the slide was closed. But a reasonable jury consid- ering the statement, “I’m not going to say anything,” could also hear a tacit implication that the slides were safe enough No. 25-2143 9 to use despite being closed. In other words, it would be rea- sonable to interpret Schultz’s statement to suggest that using the closed slides would be fine as long as no one tattled. Even though his statement wasn’t so welcoming as to make Stupak an invitee to the slides, it might have been reckless when com- bined with the condition in which the resort had left the slides. Consider an analogous situation. While working on his car, the owner disconnects the brakes. Merely leaving the car in that state might make the owner negligent if another driver came along and crashed the car. But what if someone else asked to drive the car and the owner said, “I’m not going to stop you”? Under those circumstances, the owner’s statement might be reckless because he has knowledge of the dangerous situation and tacitly encouraged the driver to use the car. So too here, a reasonable jury might conclude that Mont du Lac created a dangerous situation. It deflated the bumpers that kept riders from falling off the slide, left the tubes unteth- ered and accessible, and failed to erect a barrier or hang the “closed” sign to discourage use of the slide. When Schultz learned that Stupak and his friends might ride the slides, Schultz’s response suggested that no trouble would ensue. Viewing these facts in the light most favorable to Stupak, a reasonable jury could conclude that even if Mont du Lac did not act quite welcoming enough to grant Stupak permission to use the slides, its overall handling of the situation was reck- less. C. Mont du Lac makes two additional arguments for sum- mary judgment in its favor. First, it argues that Stupak 10 No. 25-2143 assumed the inherent risk of tubing under Wisconsin law. Second, it argues that its own actions were not the proximate cause of Stupak’s injuries. The district court did not address these arguments. “When the parties brief an issue that has not been addressed by the district court, it is not unusual for this court to remand so that the district court may consider the is- sue in the first instance.” FMS, Inc. v. Volvo Constr. Equip. N. Am., Inc., 557 F.3d 758, 763 (7th Cir. 2009). We do so here. On remand, the district court may address Mont du Lac’s argu- ments as possible alternative bases for summary judgment. * * * We VACATE the district court’s grant of summary judg- ment and REMAND for further proceedings consistent with this opinion.